Suresh vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

The appellant has preferred this appeal against the judgment dated 10.12.2010 passed by the Special Judge SC/ST (Prevention of Atrocities) Act, (hereinafter referred to as the ''Special Act'') Khandwa in Special Case No. 106/07, whereby the appellant was convicted and sentenced as under:-

Offence u/s

Sentence

Fine Amount

In default

294 of IPC

R.I. for three months''

Rs. 250/-

R.I. for 15 days

323 of IPC

R.I. for six months''

Rs. 500/-

R.I. for three months''

3(1)(x) of SC/ST (Prevention of Atrocities) Act

R.I. for 6 months''

Rs. 500/-

R.I. for one month''s

All the sentences to run concurrently. The prosecution''s case in short is that on 31.10.2007 at about 5:00 p.m. the complainant Ashok (PW-1) and his wife Shayamabai (PW-2) were going to clean the Haat Bazar at village Khar (Police Station, Kalwa District Khandwa), then on the way, the appellant met them and he started talking in an insulting manner. He told the witness Shyamabai to be a ''Bhangan''. The complainant Ashok tried to console the matter but the appellant insulated them by telling the obscene words as well as abuses relating to their caste. Thereafter, the appellant assaulted the complainant Ashok by a spade causing him injuries on his nose and left hand. The complainant Ashok went to the Police Station, Kalwa District Khandwa and lodged an FIR Ex. P/3. He was sent to the government hospital for his medico legal examination and treatment. Dr. Pahuja (PW-5) examined the complainant Ashok and gave his report Ex. P/5-A. He found that the blood was oozing from both the nostrils of the victim Ashok and there was a lacerated wound on the mid of his nose. One more lacerated wound was present on his left side of his nose. The victim was referred to the District Hospital, Khandwa for his treatment. After due investigation, a charge sheet was filed before the J.M.F.C., who committed the case to the Special Judge, Khandwa.

The appellant abjured his guilt. He did not take any specific plea, but he has stated that he was falsely implicated in the matter. However, no defence evidence was adduced by the appellant.

After considering the prosecution''s evidence, the learned Special Judge, Khandwa acquitted the appellant from the charge of the offence punishable u/s 506 of IPC, but convicted him for the offences punishable under Sections 294 & 323 of IPC and Section 3(1)(x) of the Special Act and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the appellant told the victim for appropriate cleaning, who is the owner of his house. Actually, the victims demanded for higher charges to remove a dead cow from the locality of the appellant''s house and therefore, a quarrel took place, but no obscene words were told by the appellant. He did not insult the victims on the basis of their caste and therefore, no offences punishable u/s 294 of IPC and Section 3(1)(x) of the Special Act were made out against the appellant. The victim sustained simple injuries, whereas the appellant remained in the custody for 2-3 days in the past and therefore, it is prayed that he may not be sent to the jail again.

On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct. There is no basis by which any interference can be done.

After considering the submissions made by learned counsel for the parties and looking to the prosecution''s evidence, it is to be considered that whether the appellant can be acquitted from the charges of the offences punishable u/s 294 of IPC and Section 3(1)(x) of the Special Act? and whether the sentence can be reduced.

Ashok (PW-1), Shyamabai (PW-2), Sevak (PW-3) and Pandri (PW-6) were examined as eyewitnesses. Out of them, Sevak and Pandri turned hostile. Ashok and Shyamabai had stated that the appellant abused them and thereafter, the appellant assaulted the complainant Ashok by a spade. Shyamabai did not state that the appellant abused by any obscene words. Under such circumstances, it is a material contradiction between the evidence given by the complainant Ashok and his wife Shyamabai. Since Shyamabai did not support about the abused based upon the obscene words then, the testimony of Ashok cannot be relied on this count and therefore, it is not proved beyond doubt that the appellant abused anyone by uttering the obscene words. Under such circumstances, the appellant cannot be convicted for the offence punishable u/s 294 of IPC. The learned Special Judge has erred in convicting the appellant for the offence punishable u/s 294 of IPC.

Similarly, there is a lot of contradiction between the evidence of the complainant Ashok and Shyamabai to the fact that what were the words of abuses uttered by the appellant relating to the caste of the complainant. It is accepted by Shyamabai that the appellant was in drunken condition at the time of incident and he started abusing her because he wanted that his area should be properly cleaned. The wordings about the caste of the complainant are different in the statements of Ashok and Shyamabai. If the appellant had abused them in such a manner by such words then, the wordings must be common in the evidence of both the eyewitnesses. The independent witnesses were turned hostile. Under such circumstances, looking to the contradiction in the words spoken by the appellant in the evidence of Ashok and Shyamabai, it appears that they were prosecuting their allegations by their own wisdom and a doubt is created that the appellant had abused them with the words based upon their caste. In such a doubtful condition, it cannot be said that the appellant insulted the complainant and his wife on the basis of their caste and therefore, the appellant cannot be convicted for the offence punishable u/s 3(1)(x) of the Special Act. Learned Special Judge has erred in convicting the appellant for such offence.

Learned counsel for the appellant has not challenged the conviction directed by the trial Court for the offence punishable u/s 323 of IPC. However, if the evidence in that respect is to be seen then, the evidence given by the Ashok and Shyamabai is duly corroborated by the FIR Ex. P/3 lodged by the complainant Ashok and the injury report proved by Dr. Pahuja (PW-5). No one can shift the guilt of anyone else to another person due to the enmity, therefore, it cannot be said that the complainant Ashok was assaulted by someone else and he shifted the guilt upon the appellant. Under such circumstances, it is proved beyond doubt that the appellant assaulted the complainant Ashok by a spade causing him voluntarily hurt therefore, the learned Special Judge has rightly convicted the appellant for the offence punishable u/s 323 of IPC.

So far as the sentence is concerned, it is apparent that the appellant is a first offender and a quarrel took place in a spur of moment, it was not a preplanned quarrel. Only two simple injuries were caused to the complainant and the appellant was also in drunken condition. Under such circumstances, it is not a case in which the appellant may be sent to the jail again. He also remained in the custody for 2-3 days and therefore, it is a good case in which, only fine may be imposed upon the appellant.

On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction as well as the sentence directed by the trial Court for the offence punishable u/s 294 and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is hereby set aside. He is acquitted from those charges but the conviction directed for the offence punishable u/s 323 of IPC is hereby maintained and the sentence is reduced to the period which he has already undergone in the custody with enhancement of a fine from a sum of Rs. 500/-to Rs. 1,000/-. Since the appellant has deposited the fine amount of Rs. 1250/-before the trial Court, therefore, there is no need to make any provision of the default sentence. On the contrary, the appellant shall be entitled to get the remaining fine amount back from the trial Court. The complainant Ashok S/o Bannu, R/o village Khar, Police Station Kalwa, District Khandwa will get a sum of Rs. 500/-as a compensation, out of the fine amount.

The presence of the appellant before this Court is no more required and therefore, it is directed that his bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.